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In Light of Recent Rulings, FCC Moves to Clarify TCPA

Generally speaking, the Telephone Consumer Protection Act, enacted in 1991, prohibits artificial or pre-recorded telephone calls and automated text messages to consumer residential phones and cell phones, unless the consumer has given “prior express consent.” What exactly “prior express consent” means is a subject of debate. Several recent court rulings have obfuscated the accepted meaning, leaving many outbound marketing and sales teams in the dark.

For example, the recent court case of Mais v. Gulf Coast Collections Bureau, et al. saw a U.S. district judge rule that merely providing a cell phone number to an organization on a credit application is an instance of “implied consent,” not “express consent,” wherein neither a creditor nor a third-party debt collector have consent to call a cell phone number via automated dialers. This is in opposition to an earlier recent FCC (News - Alert) Declaratory Ruling stating that supplying a phone number on such an application does, in fact, constitute “express consent.”

This does not sit well for call center operators, who face as much as $500 per negligent violation and up to $1,500 per willful violation. When class action lawsuits are concerned, these fines can add up, leading to hundreds of thousands, if not millions, of dollars in fines.

On June 11th, the FCC published a new interpretation of “prior express consent” to address these concerns. The revised interpretation, set to go into effect October 16, 2013, prior express consent must be obtained via a prior, written and signed agreement specifically stipulating the use of automated or pre-recorded calls and text messages via auto or predictive dialers.

The text of the new rule reads as follows:

The term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.

Rule 47 C.F.R. § 64.1200(f)(8) also provides additional clarification as to what precisely constitutes a written agreement, what is meant by a valid signature, and the permitted conditions under which such agreements may be used.

Organizations utilizing auto and predictive dialers would be well served to become familiar with these new requirements. Only time can tell how much deference the courts will give to the new rule, however.